No doubt, granting of bail is discretionary order and that discretion has to be exercised judiciously and it should not be arbitrary and capricious and is governed by well established principles. If the discretion is exercised in an arbitrary or unjudicial manner, remedy by way of resort to higher Courts is always open to the aggrieved party. The order must contain though not elaborate but brief reasons for grant of bail. Any order without any reasons can be said to be a perverse order. As seen from the order, no reason was assigned for granting bail to the respondent herein (A1). Simply because, cognizance was not taken for want of sanction by the competent authority, that does not mean the accused is entitled for bail automatically.

*THE HON’BLE SRI JUSTICE K.C.BHANU

+CRIMINAL PETITON No. 2890 OF 2012.

%27-03-2012

# The State represented by the Dy.

Superintendent of Police, SPE, CBI

Hyderabad.

                     …Petitioner-Complainant                                                                                                                         

                                                           

Vs.

$ B.P.Acharya

   ….Respondent-A1

!Counsel for the Petitioner: Mr. P.Kesava Rao, Spl.S.C. for CBI

                                                

^Counsel for the Respondent : Mr.V.Surender Rao

                             

                              

<Gist :

>Head Note:

? Cases referred:

1.(1978) 1 SCC 118

2. AIR 1980 SC 962

THE HON’BLE SRI JUSTICE K.C.BHANU

CRIMINAL PETITION NO.2890 OF 2012

ORDER:

        This petition is filed by Deputy Superintendent of Police, SPE, CBI, Hyderabad, under Section 439 (2) r/w 482 Cr.P.C. to call for the records relating to the docket order, dated
16-03-2012 passed in RC.18 (A)/2011-C.C.06 of 2012 on the file of the learned Special Judge for CBI Cases at Hyderabad and quash the same.

          2. The respondent (A1) is the accused for the offences punishable under Sections  120-B r/w 420 , 409, 420 and 477-A IPC and 13 (2) r/w 13 (1)(c) and (d) of Prevention of Corruption Act, 1988.  The docket order, dated 16-03-2012 reads that the case was taken on file on 09-03-2012, that no sanction was obtained for A1 and A11, that on 09-03-2012, the learned Deputy Legal Advisor  submitted that filing of charge sheet without sanction orders is not proper, that the matter is posted to today i.e., on 16-03-2012 for further hearing and also for getting sanction orders from the Government and that the sanction orders passed against A1 and A11 are available. The charge sheet was filed against A1 to A6 and A9 to A14.  It was mentioned in the charge sheet that the investigation against A7 and A8 i.e., N.Sunil Reddy and G.Vijaya Raghav is still pending and supplementary charge sheet will be filed against them.  A1, A11 and A12 are public servants.  A12 is a retired public servant. No sanction is required for A12. So far, no sanction order of A1 and A11 obtained and filed in the Court. As per Section 19 of P.C. Act, 1988, no Court should take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of P.C. Act, 1988 alleged to have been committed by a public servant. As such no cognizance of the offences alleged to have been committed by A1 and A11 can be taken.  The charge sheet is taken on file for the offences under Sections 120-B r/w 420, 409 and 477-A IPC against A2 to A8, A9 and A14, for the offences under Sections 120-B r/w 420 and 409 IPC against A1, for the offences under Sections 120-B IPC and 13 (2) r/w 13 (1)(d) and 15 of P.C. Act, 1988 against A12 and for the offences under Sections 120-B r/w 420, 109 and 409 IPC against A13. Since the offences alleged against A1 are not being taken cognizance for want of sanction under Section 19 of P.C. Act, 1988, he (A1) shall be released on bail on his executing a bond for Rs.25,000/- with two sureties for like sum each to the satisfaction of this Court.  A1 should not leave Hyderabad without the permission of this Court.  A1 should surrender his pass port if any otherwise he should submit the same through an affidavit that he has no passport.

3.  There cannot be any dispute that the Court will have no inherent power of remand of an accused to any custody unless the power is conferred by law.

4. The Court has to apply its mind for granting or refusing the bail to the accused with regard to facts of the case and the Court has to take note of certain aspects for grant or refusal of bail  in view of decision reported in GURUCHARAN SINGH AND OTHERS  V STATE (DELHI ADMINISTRATION) [1], wherein it was held thus:

“ Section 439 (1), Cr. P. C. of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under S. 437 (1) there is no ban imposed under S. 439 (1), Cr. P. C. against granting of bail by the High Court or the Court of session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so the High Court or the Court of session will have to exercise its judicial discretion in considering the question of granting of bail under S. 439 (1), Cr. P.C. of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of S. 437 (1) and S. 439 (1) Cr. P. C. of the new code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence, of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.”

        5. No doubt, granting of bail is discretionary order and that discretion has to be exercised judiciously and it should not be arbitrary and capricious and is governed by well established principles. If the discretion is exercised in an arbitrary or unjudicial manner, remedy by way of resort to higher Courts is always open to the aggrieved party. The order must contain  though not elaborate but brief reasons for grant of bail.  Any order without any reasons can be said to be a perverse order.  As seen from the order, no reason was assigned for granting bail to the respondent herein (A1).  Simply because, cognizance was not taken for want of sanction by the competent authority, that does not mean the accused is entitled for bail automatically.

6. Mr. C.Padmanabha Reddy, learned senior counsel appearing for the respondent herein (A1) contended that under Section 309 (2) Cr.P.C., after cognizance is taken, the Court gets power to remand the accused person, that as cognizance has not been taken, the accused cannot be remanded to judicial custody and hence the order of the trial Court is correct, legal and proper.

7. For this purpose, it is necessary to refer to sub-section (2) of Section 309 Cr.P.C., which reads thus:

“309 Power to postpone or adjourn proceedings:

(1)   …

(2)   If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of , or adjourn, any inqauiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody”

8. The above provision consists of two parts. First part empowers the Court after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement. The second part provides grant of adjournment any inquiry or trial from time to time after recording reasons. Sub-section (2) also gives discretion to the Court to remand the accused if he is custody.  The power of a Court to remand the accused to custody could be exercised either under Section 167 or 309 Cr.P.C. Once the charge sheet is filed, period of remand under Section 167 Cr.P.C. comes to an end.  If further custody is necessary, it can be done only under Section 309 Cr.P.C.

9.  In this case, the petitioner herein (CBI) filed charge sheet on 01-02-2012 without obtaining any necessary sanction from the competent authority as required under Section 197 Cr.P.C. as well as Section 19 (1) of P.C. Act, 1988.  According to counsel for CBI, proposals to prosecute the accused  have been sent and they are awaiting. That does not mean, the accused cannot be remanded in view of the fact that petitioner has not obtained any sanction order. Investigation commences after receipt of information of a cognizable offence starting from Section 154 Cr.P.C. and culminates into filing of a report under Section 170 Cr.P.C. Similarly after filing of charge sheet, the inquiry commences.  Inquiry is defined under Section 2 (g) of Cr.P.C., which means every inquiry, other than a trial conducted under the Code by a Magistrate or Court. After filing of police report, the proceedings till trial commences would be an inquiry.  In other words every inquiry before trial to ascertain whether any offence has been committed  and any one should be put on trial. The word ‘trial’ has not been defined under  Cr.P.C..  Therefore, it is necessary to look into the authoritative pronouncement of Apex Court as to the starting point of commencement of trial.  On this aspect, it is pertinent to refer to a decision in  V.C.SHUKLA V STATE THROUGH CBI [2], wherein it was held thus:

“For these reason, therefore, we are satisfied that the proceedings starting with Section 238 of the Code including any discharge or framing of charges under Section 239 or 240 amount to trial.”

        10. Trial is a judicial proceeding before the Court, which ends in conviction or acquittal.  All other proceedings are inquiries and they have various endings according to circumstances.

        11. The trial deemed to have been commenced upon a police report instituted  by the police in a warrant case after framing of charges.  Therefore, after filing of the police report under Section 170 Cr.P.C. and before commencement of trial, the interregnum period can safely be called as inquiry.  In such a case, Section 309 Cr.P.C. empowers the Court during enquiry to remand the accused for a term not exceeding 15 days.  Simply because, the Investigating Agency has not filed any sanction orders from the competent authority, that does not mean, the accused is entitled for bail automatically or as a matter of right. This aspect of the case has been completely overlooked by the trial Court.  It is surprising to note that without there being any bail application and without hearing the counsel for CBI, bail was granted. In the facts and circumstances of the case, the learned Judge ought to have considered the case for grant of bail on merits. Therefore, the order under challenge is a perverse one and the same is liable to be set aside.

12. Accordingly, the Criminal Petition is allowed setting aside the docket order, dated 16-03-2012 on the file of Special Judge for CBI Cases, Hyderabad. The respondent herein (A1) is directed to surrender before the concerned Court forthwith, failing which, the petitioner (CBI) is at liberty to arrest and produce him before the concerned CBI Court.

----------------------

K.C.BHANU, J

DATED: 27-03-2012

Note: L.R. copy to be marked

B/o

Hsd

---

[1] (1978) 1 SCC 118

[2] AIR 1980 SC 962